9911796707
TMI Blog2023 (10) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... plication (Filed by a Financial Creditor , under Section 7 of the I B Code, 2016). To put it differently, the situation / circumstances , under which, a Corporate Debtor , could not repay , the Financial Debt , need not be taken as a Defence , in a proceeding, under the Code - The Adjudicating Authority / Tribunal , need not wait for the determination, to be made by the Debt Recovery Tribunal . Although, Debt , is Disputed , if the Amount , is more than Rs.1 Lakh ( Rs.1 Crore , after amendment , to the Code ), the Application , under Section 7 , is maintainable in Law . It cannot be gainsaid that if a Debtor , acknowledge , receiving the Payment , but, chose to amuse itself, by denying the liability , the document , would still be one , that would keep the claim alive , within the ambit of Section 18 of the Limitation Act, 1963 . Also that, if the Sum , borrowed by the Respondent, is shown in the Balance Sheet , it may amount to an acknowledgement , and the Creditor , might have a fresh Period of Limitation , on the date on which, an acknowledgement , was made. As a matter of fact, the Balance Sheets of the Corporate Debtor , date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the 1st Respondent / Bank . The impugned order passed by the Adjudicating Authority ( National Company Law Tribunal , Bench I, Hyderabad) in admitting the Section 7 Application (Filed by the 1st Respondent / Bank / Financial Creditor / Petitioner), is free from any Legal Infirmities . Accordingly, the instant Appeal fails. Appeal dismissed. - [Justice M. Venugopal] Member (Judicial) And [Shreesha Merla] Member (Technical) For the Appellant : Mr. Dhruba Mukherjee, Senior Advocate For Mr. Kumar Anurag Singh, Mr. Paras Mithal and Ms. Pragya Gautam, Advocates For the Respondent No. 1 : Mr. M.S. Krishnan, Senior Advocate For Mr. Pranava Charan, Advocate For the Respondent No. 2 : Mr. S. Patrick, Advocate JUDGMENT (Virtual Mode) Justice M. Venugopal, Member (Judicial): Introduction: The Appellant / Suspended Director of M/s. Vibha Agro Tech Limited ( Corporate Debtor ), has preferred the instant Comp. App (AT) (CH) (INS.) No. 184 of 2023, as an Aggrieved Person , in respect of the impugned order dated 05.06.2023 in CP (IB) No. 645 / 7 / HDB / 2018 (Filed by the 1st Respondent / Financial Creditor / Bank / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich only fraction of amount became due like in present case nonpayment of interest on 30th June, 2015 only interest part became due. IBC does not comprehend that on first default committed by any debtor, all creditors should rush to IBC. The core objective of IBC is resolution of insolvency of a Corporate Debtor. All provisions have been made; the entire scheme of the IBC has been contemplated to achieve the aforesaid object. Where debtor is unable to pay a fraction of debt which becomes due there is no presumption that Debtor has become insolvent and, in an event, the Creditor awaits for some more time like default by non-payment of first instalment or entire due as in the present case the right of creditor shall not be foreclosed. What is intended by scheme of statute is that no Application under Section 7 can be filed for default from which date the due claim has become time-barred. Time-barred debt cannot be revived by any proceeding under Section 7 which has time and again been reiterated by Hon'ble Supreme Court of India. We are thus not persuaded to read an additional word 'First' before Company Appeal (AT) (Insolvency) No. 911 of 2021 the expression 'Defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed on 28th November, 2018 was well beyond three years and liable to be rejected. The Bank was effectively injured on 30th June, 2015 when payments were not made. . Sr. Advocate submits that the unstamped document could not be admitted in evidence and could not have been looked into for any purposes. 16. .. .. .. The question to be answered is as to whether non-filing of the Application within three years from 30th June, 2015 shall make the Application filed by the Financial Creditor under Section 7 as barred by time since admittedly the Application have been filed on 28th November, 2018 .. , Sr. Advocate has emphatically submitted that according to the Code when the first default has been committed, time shall start running and the Application under Section 7 cannot be filed for time barred debt. He further submits that the Financial Creditor has not filed the Section7 Application within three years from the date i.e. 30th June, 2015 and thus their claim is barred by time and application ought to have been rejected. (Emphasis supplied) 18. .. .. .. In the present case, non-payment of amount of interest on 30th June, 2015 was non-payment of part of debt s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default as claimed in the Application is within three years the Application cannot be thrown out as barred by limitation. The mere fact that the Financial Creditor has ignored or not claimed any due which was due three years prior to the date of default as claimed in the Application shall not disentitle the Financial Creditor to claim the debt which was payable within three years from the date of filing. .. .. (Emphasis Supplied) 23. Hon'ble Supreme Court of India in 'B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta Associates' [(2019) 11 SCC 633] had occasion to consider the law of limitation in reference to Insolvency and Bankruptcy Code and Section 3(11) and 3(12). Hon'ble Supreme Court held that Financial Creditor or Operational Creditor can initiate an application with relation to debt which has not become time barred. It was held that: 42. It is thus clear that since the Limitation Act is applicable to applications filed under Section 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue , therefore, accrues when a default occurs. If the default has occurred over three ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debtor (corporate guarantor), would get triggered the moment the principal borrower commits default due to non-payment of debt. Thus, when the principal borrower and/or the (corporate) guarantor admit and acknowledge their liability after declaration of NPA but before the expiration of three years therefrom including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect of Section 18 of the Limitation Act. Section 18 of the Limitation Act gets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 of the Code enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 of the Code. Further, the acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person to file this petition we are convinced that the said person had been fully authorized. In so far as the other objection that the statement of accounts is not duly certified as per the provisions of Banker Book of Evidence Act, is concerned, we are afraid the same is untenable in the background of the fact that the financial debt as well as its default are not in dispute in this case. 28. As already observed existence of financial debt of the sum over Rupees one crore is due and its default is not in controversy. Having carefully examined the plea of limitation, we are fully satisfied that, the Petition as filed is within the prescribed period of limitation. and ultimately, admitted the Petition , under Section 7 of the I B Code, 2016, declared Moratorium , and appointed an Interim Resolution Professional , etc. Appellant s Submissions: 3. The Learned Counsel for the Appellant contends that the impugned order , dated 05.06.2023, made in CP (IB) No. 645 / 7 / HDB / 2018, by the Adjudicating Authority ( National Company Law Tribunal , Bench I, Hyderabad), is resting upon a Time Barred Debt , because of the fact that the Amendment Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut to terms, the course adopted by this Court in Asset Reconstruction Company (India) Limited (Supra) should be followed. Accordingly, we allow the Appeal and set aside , the impugned order . The Appeal is remanded back and will be restored back to file. We permit the appellant to seek amendment of the application under Section 7 as to incorporate the case based on acknowledgement as contained in the balance sheets allegedly of the Respondent. We leave open all contentions available to the Respondent. This benefit will be available to the appellant subject to the appellant paying a sum of Rs.3 Lakhs as costs to the Respondent within a period of three weeks from today. The appeal is allowed as above. We make it clear that the questions relating to the case set up by the Appellant , relating to the acknowledgement flowing from MRA dated 26.09.2013, and O.T.S. dated 19.06.2015 shall not be revisited. 10. In this connection, the Learned Counsel for the Appellant, refers to the Order , dated 23.08.2022, passed by the Principal Bench of this Tribunal , in Comp. App (AT) (INS.) No. 636 of 2020, between State Bank of India v. Vibha Agro Tech Limited, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case proceeds. 29. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the Defendant should be taken away 12. The Learned Counsel for the Appellant, comes out with a plea that it is the case of the 1st Respondent / Bank , that the Corporate Debtor , in its Balance Sheets , for the Financial years 2013-2014, 2014-2015 and 2015-16, acknowledge the Grant of Financial Assistance , by the Bank . Further, it was stated that the Entries in Balance Sheets , cannot be read in Isolation , and in the instant case, the amount exhibited in the Balance Sheets , is different from what is being claimed by the Financial Creditor , and hence, there is a Dispute , in regard to the Acknowledgement of Liability , by the Corporate Debtor . 13. The Learned Counsel for the Appellant, refers to the Judgment of the Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of seeking an extension of Period of Limitation , can only rely upon the Balance Sheets , in respect of the Financial Years 2013-14 2014-15, signed on 16.08.2014 and 27.08.2015 respectively and no reliance can be placed on the Balance Sheet , for the Financial Year 2015-16 , signed on 27.08.2016, as the same was signed, after the expiration of the period of Limitation , from the Date of Default . 17. The Learned Counsel for the Appellant, refers to the Judgment of the Hon ble Supreme Court in Revajeetu Builders Developers v. Narayanaswamy Sons Anr., (vide Civil Appeal No. 6921 of 2009 dated 09.10.2009), reported in (2009) 10 SCC Page 84 at Spl Pg: 102, wherein, at Paragraph 63, under the caption Factors to be taken in to consideration, while dealing with applications for amendments , it is observed as under: 63(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 18. The Learned Counsel for the Appellant, seeks in aid of the decision of the Hon ble Supreme Court in Sampuran Singh Ors. v. Niranjan Kaur Ors. (vide Civil Appeal No. 4544 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Financial Creditor , on the happening of Default (not the Date of Non Performing Asset), and thus for the purpose of Limitation , as well as the same date, requires to be taken into account. 24. It is represented on behalf of the Appellant that the Amendment Application , dated 17.11.2021 (Filed by the 1st Respondent / Bank / Petitioner), was without proper Authorisation and hence, the said Application , ought to have been dismissed by the Adjudicating Authority / Tribunal , and to lend support to his contention, the Learned Counsel for the 1st Respondent / Bank, adverts to the Order of this Tribunal , dated 20.09.2017, in Palogix Infrastructure (P) Ltd. v. ICICI Bank Ltd. (vide Company App (AT) (INS.) No. 30 of 2017), wherein at Paragraph 31, it is observed as under: 31. As per Section 7 of the 'I B Code' an application for initiation of 'Corporate Insolvency Resolution Process' requires to be filed by 'Financial Creditor' itself. The form and manner in which an application under section 7 of the 'I B Code' is to be filed by a 'Financial Creditor' is provided 'Form-l' of the Adjudicating Authority Rules. Upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company is in the best interest of everyone and reasonable time must be given for the talks to conclude. 28. On behalf of the Appellant, a reference is made to the decisions: i) LC Hanumanthappa vs. H.B. Shivakumar, repoted in 2016(1) SCC 332 (paragraphs 6, 11, 12 29). ii) Revajeetu Builders Developers V. Narayanaswamy Ors. (2009) 10 SCC 84 (paragraph 67). iii) Raju Ramsing Vasave V. Mahesh Deorao Bhivapurkar Ors., (2008) 9 SCC 54, (paragraph 22 24). iv) Saurav Jain Ors. Vs. A.B.P. Design Ors., AIR 2021 SC 3673 (paragraph 34) 29. According to the Appellant, none of the provisions and judgments relied upon by the 1st Respondent / Bank can come to its rescue, in as much as the Law is clear that an Amendment , seeking to introduce, a time barred claim relates back to the date of filing of the Amendment Petition and not the original petition. 1st Respondent / Bank s Contentions: 30. The Learned Counsel for the 1st Respondent / Bank, submits that the 2nd Respondent / Corporate Debtor ( Vibha Agro Tech Limited ), had availed numerous facilities, including, but not limited to the Cash Credit , Corporate Loan , Term Loan 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Vibha Agro Tech Limited , within a period of three weeks from the date of the order. 34. The Learned Counsel for the 1st Respondent / Bank, points out that the 1st Respondent / Bank, had paid a Sum of Rs.3 Lakhs on 05.11.2021 and that the Bank, had filed IA No. 87 of 2022, praying for an Amendment of the Application , under Section 7 of the I B Code, 2016, and that the IA No. 87 of 2022, was allowed by the Principal Bench of this Tribunal , on 11.01.2022. 35. The Learned Counsel for the 1st Respondent / Bank, brings it to the notice of this Tribunal , that the Appellate Tribunal , through its Order dated 23.08.2022, in Comp. App (AT) (INS.) 636 of 2020, had remanded the matter to the Adjudicating Authority / Tribunal , by observing that in regard to the appreciation of Balance Sheets, which had become Part of Record , was to be looked into the Adjudicating Authority , to hold, as to whether the Application , filed under Section 7 of the Code , is within Limitation or not . 36. The Learned Counsel for the 1st Respondent / Bank, adverts to the fact that the Adjudicating Authority / Tribunal , on 05.06.2023, had admitted the Application / Petition , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of Relation Back , was never projected by the Appellant , before the Principal Bench of this Tribunal , in IA No. 87 of 2022 in Comp. App (AT) (INS) No. 636 of 2020, and further, the Appellant , had not contested the aforesaid amendment, as seen from the Order , dated 11.01.2022, in this regard. 41. The Learned Counsel for the 1st Respondent / Bank, submits that Section 11 Explanation IV of the Civil Procedure Code, 1908, pertaining to Constructive Res Judicata , read with Order II Rule 2 of Code of Civil Procedure, 1908, will squarely apply to the facts of the present case. That apart, on behalf of the 1st Respondent / Bank, it is pointed out before this Tribunal , that the instant Comp. App (AT) (CH) (INS.) No. 184 of 2023, is the third round of Litigation , on the very same aspect of Limitation . 42. The Learned Counsel for the 1st Respondent / Bank, advances a plea, that the Hon ble Supreme Court, through its Order , dated 20.10.2021, in Civil Appeal No.2264 of 2021, between State Bank of India v. Vibha Agro Tech Limited , had provided an opportunity, to the 1st Respondent / Bank for bringing an Acknowledgement of Liability , by the Corporate Debtor, on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Court. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observation in Siddalingamma and Anr. v. Mamtha Shenoy MANU/SC/0657/2001 : 8 SCC 561. 46. The Learned Counsel for the 1st Respondent / Bank, refers to the decision in Ganda Singh v. Zora Singh 1949 SCC Online Pepsu 1 : AIR1950 Pepsu 21, wherein at Paragraph 4, it is observed as under: 4. Certain authorities were quoted before the learned District Judge to show that amendment of a plaint dated back to the date of the presentation of the original plaint. The correctness of this legal position was admitted by the learned District Judge but he distinguished those cases from this case on the ground that those suits were instituted when the caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent of Rs.103 Crores, in the Balance Sheet (vide Page 362 of the Appeal Paper Book Vol. II of the Appellant dated 27.06.2023). 52. The Learned Counsel for the 1st Respondent / Bank, refers to the Notes to the Financial Statements , for the year ended 31.03.2016 (vide Page 358 of Vol. II of Appellant s Appeal Paper Book dated 27.06.2023), wherein, under the Head, Note on CDR - (h), (i), (j), (k) and (l), reads as under: (h) Fresh Term Loan termed as Priority Debt (PD) was sanctioned to the tune of Rs.90.00 Cr. (disbursed Rs.57.77 Cr.) which is repayable over 3.25 years from COD. (i) The CDR Package sanctioned by the banks in July 25, 2013, could not be implemented as per the sanctioned terms by the banks and correspondingly the banks have revoked the CDR Package in December 2014. (j) The company has defaulted in paying the outstanding dues to the banks all the Loan Accounts with banks became NPA and all the banks issued the Statutory notice U/s 13(2) of The Securitization and Reconstruction of Financial Assets and Enforcements of Security Interest Act, 2002, by August 2015 for recovery of outstanding dues from the company. (k) All the Term Loans are sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the Balance Sheet , be it 2014 or 2015 or 2016, will extend the Limitation Period , from that period and as such, there is no bar of Limitation , as on 2016. 56. The Learned Counsel for the 1st Respondent / Bank, takes a stand that there is no requirement, under the Law , that the Sum Claimed in the Balance Sheet, should exactly be the same, as Sum Claimed , by the Financial Creditor . 57. The Learned Counsel for the 1st Respondent / Bank, contends that the Amended Application , was signed by Mr. Vijay Kumar, who was the Asst. General Manager, deriving his Authority , from Regulation 76 and 77 of the State Bank of India Regulations General Regulations, 1955. In this connection, the Learned Counsel for the 1st Respondent / Bank, in support of his aforesaid contention, relies on the decision in State Bank of India v. Kashmir Art Printing Press, Sirsa and Ors. 1981 SCC Online P H 37 : AIR 1981 PH 188, wherein, at Page 5, Paragraph 10, it is observed as under: 10. I cannot lose sight of the fact that the State Bank of India has Branches all over the country and a special statute, namely, the Act, was framed for its working. The Banking transactions are tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess , is not only Beneficial , for the Creditors , at large, but also, for the 2nd Respondent, to revive and therefore, prays for the dismissal of the instant Company Appeal , preferred by the Appellant , to secure the ends of justice . Contents of Status Report of 2nd Respondent / IRP: 61. According to the 2nd Respondent / Interim Resolution Professional, he had received various Claims , from the Creditors of the Corporate Debtor , and the same is mentioned as follows: I). Claims received from the Financial Creditors : S. No. Name of Creditor Total Amount Claimed (in Crores) 1 State Bank of India 1061.15 2 Punjab National Bank 617.97 3 IDBI Bank 441.88 4 Reliance ARC (Assignee of Kotak Mahindra Bank) 434.47 5 Axis Bank 339.19 6 Peagusus ARC (Assignee of Indusind Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the past two years and in fact, the Interim Resolution Professional , had sent a mail on 14.06.2023, to the Appellant / Suspended Director , with a request, to provide documents / vital information , relating to the Corporate Debtor , required initially, for the purpose of taking control and custody of the Assets of the Corporate Debtor . Although, the Interim Resolution Professional , had sent emails to the Statutory Auditors of the Corporate Debtor , requesting the Financial Statements , for the Financial Year 2020-21 onwards, along with various allied information , he had not received the requisite information , till date. 64. It is pointed out by the 2nd Respondent / IRP that the Representatives of the Interim Resolution Professional , after mutual affirmation, had determined to visit the Registered Office , Manufacturing Units and Properties of the Corporate Debtor , on 23.06.2023, and took possession of numerous Assets , Properties and Facilities of the Corporate Debtor , and appointed the Security Personnel . 65. The Learned Counsel for the 2nd Respondent / IRP, submits that the Interim Resolution Professional , had filed an Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is more than Rs.1 Lakh ( Rs.1 Crore , after amendment , to the Code ), the Application , under Section 7 , is maintainable in Law . 71. To be noted, the Adjudicating Authority / Tribunal , is not a Civil Court , to determine the Violation of Contract , between the Parties . A mere dispute, about the Quantum of Payment , does not affect the Right of a Financial Creditor , to initiate appropriate proceedings , under the I B Code, 2016. Under the Code, the shift is inability to pay , to the existence of Default . Merely because a Financial Creditor , has approached the Debt Recovery Tribunal , for an appropriate relief , it cannot be said that, it cannot proceed under the I B Code 2016. Discretion: 72. Indeed, the term Discretion , when applies to a Court of Justice , means, Sound Discretion , guided by Law . In this connection, this Tribunal , worth recalls and recollects the Judgement of the Hon ble Supreme Court of India dated 22.02.1967 (vide Civil Appeal No. 1038 of 1965), in S.G. Jaisinghani v. Union of India Ors., , reported in India Kanoon, AIR 1967 SC 1434, wherein, it is observed as under: .. Discretion, as Lord Mansfield ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IB) No. 645 / 7 / HDB / 2018 (under Section 7 of the I B Code, 2016, r/w Rule 4 of the I B (AAA) Rules, 2016), wherein, in Form I, under Part IV ( Particulars of Financial Debt ), it is mentioned as under: Part-IV PARTICULARS OF FINANCIAL DEBT 1 Total amount of Debt granted Total disbursed amount. Total Debt Granted Disbursed by State Bank of India Nature of facility by SBI Debt Granted Rs. in crores Debt Disbursed Rs. in crores Cash Credit 79.85 79.85 Corporate Loan 50.00 50.00 Term Loan 1 6.75 6.75 Term Loan 2 47.00 35.58 Working Capital Term Loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58000404.15 Term Loan 2 31810754741 302574813.06 Working Capital Term Loan 33334205427 341728402.90 Priority Debt 33334614702 345890831.56 FITL 33334493275 317885271.62 EPCG BG --- --- TOTAL (A) 3270372501.81 Date on which the default occurred* * The accounts of the unit were classified NPA w.e.f. 30.04.2013 due to failed restructuring as per the provisions of classification of IRAC issued by Reserve Bank of India. Copy of the Statement of Account is filed herewith as Annexure No.2 (Page No.2 to 68) 80. Before the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83. The Corporate Debtor / Vibha Agro Tech Limited ( before the Adjudicating Authority ), in its Additional Counter , had averred that the 1st Respondent / Bank , had filed various Certificates , purportedly under Section 2 (A) of the Bankers Books Evidence Act, 1891 , and that the Ledger Accounts (not being Books of Original Entries ), cannot be accepted in evidence and not to be relied upon, except when the Bank , produces a Certified Copy , as per the Bankers Books Evidence Act, 1891 , particularly in fulfilment of the requirements of ingredients of Sections 2 (8), 2A and 4 thereto. 84. Not resting with the above, the Corporate Debtor , in its Additional Counter , had stated that the Statement of Accounts , furnished by the Bank , indicates that the rate of Interest , was 0.00% p.a. , whereas, on pages 4, 6, 8, 10, 12, 15 and 16, the rate of Interest , indicates, ranging from 11.60% to 13.75%, etc. 85. Coming to the plea of the Appellant, that this Tribunal , in Comp. App (AT) (INS.) No. 636 of 2020, between State Bank of India v. Vibha Agro Tech Limited on 23.08.2022, had allowed , the Appeal , set aside , the Order of the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2022, in Comp. App (AT) (INS.) No. 636 of 2020, passed by this Tribunal , latently and patently indicates that this Tribunal , had allowed IA No. 87 of 2022, seeking to take on record, the amended Section 7 Application, under I B Code, 2016, and no pinpointed or specific condition was fastened by this Tribunal , at the time of permitting the Amendment , prayed for, by the 1st Respondent / Bank. It cannot be lost sight off, that there was no representation on the Corporate Debtor s side on 11.01.2022, when IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020 was allowed , by this Tribunal , and it has attained finality , binding the inter se Parties . Viewed in that perspective, this Tribunal , is of the earnest view that the Amendment , allowed by this Tribunal , in IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020, on 11.01.2022, in crystalline manner, relates back to the filing of the Original Section 7 Application (dated 06.09.2018), on 12.09.2018, in CP (IB) No. 645 / 7 / HDB /2018, considering the fact that no fetter / condition , was imposed, by the Hon ble Supreme Court of India in Civil Appeal No. 2264 of 2021, filed by the 1st Respondent / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o., Chartered Accountants, the Managing Director and the Director of the Corporate Debtor / Vibha Agro Tech Limited ), significantly points out that there was an Acknowledgement of Debt , by the Corporate Debtor , in respect of the 1st Respondent / Bank / Financial Creditor / Petitioner . As such, the Limitation period, is elongated, which is an unfavourable circumstance , against the Corporate Debtor and the Appellant . 93. Likewise, in the Balance Sheet as at 31.03.2016 (for the Financial Year ending 31.03.2016, the Partner of P. Murali Co., Chartered Accountants, the Managing Director and the Director of the Corporate Debtor / Vibha Agro Tech Limited , had affixed their Signature on 27.08.2016, and in this Document (Balance Sheet), the Corporate Debtor , had acknowledged its Debt , in respect of the 1st Respondent / Bank / Financial Creditor / Petitioner , and the same, extends the Limitation period . Therefore, from the Date of Non Performing Asset i.e., 30.04.2013, in the present case, there are numerous Acknowledgement of Debts right from the year 2014, and this Tribunal , in a cocksure fashion, holds that there is no bar of Limitation , as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Barred , because of the fact that the last acknowledgement , as per the Amended Application , under Section 7, was 27.08.2016), and as such, the impugned order , passed by the Adjudicating Authority / Tribunal , based on the Amendment Application , is bad in Law , this Tribunal, points out that the CP (IB) No. 645 / 7 / HDB / 2018, dated 06.09.2018 (Filed by the 1st Respondent / Financial Creditor / Bank on 12.09.2018), and considering the fact that the Hon ble Supreme Court of India, on 20.10.2021, in Civil Appeal No.2264 of 2021, had permitted the 1st Respondent / Bank ( Appellant - Before the Hon ble Supreme Court of India), to seek Amendment of Section 7 Application , with a view to incorporate the case, based on the Acknowledgement , as contained in the Balance Sheets , allegedly of the Respondent / Corporate Debtor , keeping in mind of the fact that IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020, was filed by the 1st Respondent / Bank, before this Tribunal , on 17.11.2021, and the same being allowed on 11.01.2022, and later, on 23.08.2022, this Tribunal , had disposed of the Comp. App (AT) (INS.) No. 636 of 2020 (filed by the 1st Respondent / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor . 100. It is pointed out that Section 129 of the Companies Act, 2013, deals with the Financial Statement , and Section 137 of the Act, pertains to Filing of Copy of Financial Statement , with the Registrar of Companies . Indeed, Rule 12 of Companies (Accounts) Rules, 2014, lays down the manner of Filing Financial Statements , and Fees , to be paid thereon. 101. It is to be remembered, that the Date on which, the Balance Sheet , is approved , in the Board Meeting , and signed by the Two Directors , as per the Companies Act, is sufficient acknowledgement , for the purpose of Limitation Act . Also that, where the Balance Sheets , is signed by the several Directors , several months, after the Balance Sheet date, the Acknowledgement of Debt , shown in the Balance Sheet , can relate back to the Balance Sheet date and not the Date , on which, the Directors signed it. 102. A Statement in a Balance Sheet , where, in the List of Creditors , the Liability , is accepted , by the Company , and if there is no Dispute , about the Liability , it clearly amounts to an Acknowledgment of Liability , as per decision in Sheetal Fabrics v. Coir Cushions Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is established on the part of the 1st Respondent / Bank that its Claim , made in Section 7 Application , in CP (IB) No. 645 / 7 / HDB / 2018, dated 06.09.2018, but filed on 12.09.2018 (before the Adjudicating Authority / Tribunal ), is not a Time Barred one. 109. In the instant case on hand, this Tribunal , points out on 31.08.2018, going by the Application (Filed by the 1st Respondent / Financial Creditor / Bank / Petitioner, under Section 7 of the Code, vide CP (IB) No. 645 / 7 / HDB / 2018), the Sum claimed to be in Default , was Rs.327,03,72,501.81/- (vide Page 76 of the Appellant s Appeal Paper Book, Vol-I, Form-I, Part IV - Particulars of Debt , at Page 79), from the Corporate Debtor / Vibha Agro Tech Limited . According to the 1st Respondent / Bank, the Outstanding Sum , claimed before the Interim Resolution Professional , is Rs.1,061.15 Crores. 110. It is the version of the 1st Respondent / Bank / Financial Creditor / Petitioner, that the Total Sum , claimed by all the Financial Creditors , is around Rs.3,400/- Crores. Further, according to the 1st Respondent / Bank / Financial Creditor / Petitioner, the Punjab National Bank and IDBI Bank, had ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
